'Nena v 'Nena (CIV/APN/139/18) [2018] LSHC 7 (07 May 2018);

Group

Application for an interdict launched in the High Court without satisfying the requirements of section 6 of the High Court Act No. 5 of 1978 – Application dismissed with costs

Full judgment

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU CIV/APN/139/18

In the Matter Between:-

NTHABISENG ‘NENA (NYATSO) APPLICANT

AND

MAPOLOSI ‘NENA 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT

LAND ADMINISTRATION AUTHORITY 3RD RESPONDENT

O/C PITSO GROUND POLICE STATION 4TH RESPONDENT

ATTORNEY GENERAL 6TH RESPONDENT

___________________________________________________________________

JUDGMENT

CORAM : HON. M. MOKHESI AJ

DATE OF HEARING : 7th MAY 2018

DATE OF JUDGMENT : 7th MAY 2018

CASE SUMMARY

Application for an interdict launched in the High Court without satisfying the requirements of section 6 of the High Court Act No. 5 of 1978 – Application dismissed with costs

ANNOTATIONS:

STATUTES: High Court Act No. 5 of 1978

CASES : ‘Malebohang Manare and Another v Master of High Court and Others (CIV/APN/79/2018) (unreported)

National University of Lesotho v Thabane and Another LAC (2007 – 2008) 476

Nko v Nko (1991 – 92) LLR – LB 5

PER MOKHESI AJ

[1] INTRODUCTION

The Applicant in this case approached this court for relief in the following terms:-

“1. Dispensing with the normal rules relating to modes and periods of service of court process on account of urgency hereof.

2. That rule Nisi be issued returnable on the date and time to be determined by this Honourable Court calling upon the respondents to show cause (4 only) why:

(a) The applicant’s occupation of the site in dispute (plot No. 13283 – 1147) shall not be restored pending finalization hereof and pending finalization of the legal action to be instituted by the Applicant.

(b) The 1st Respondent shall not be ordered to hand over the keys to the home at Mohalalitoe (plot No. 13283 – 1147), to the Sheriff or his Deputy to enable the Applicant to stay in occupation pending finalization hereof and pending finalization of the legal action to be instituted by the Applicant.

(c) The 1st Respondent shall not be restrained and interdicted from interfering with the Applicant’s occupation of the plot pending finalization hereof and pending finalization of the legal action to be instituted by the Applicant.

(d) The 1st Respondent shall not be interdicted and restrained from exercising the lessee’s rights over plot No. 13283 – 1147 pending finalization hereof and pending finalization of the legal action to (sic) instituted by the Applicant.

(e) The 2nd Respondent shall not be ordered to appoint a curator Bonis to collect rentals from rental flats at plot No. 13283 – 1147 pending finalization of the legal (sic) of the legal action to be instituted by the Applicant.

(f) The 3rd Respondent shall not be interdicted and restrained from allowing or permitting the 1st Respondent to exercise lessee’s rights over plot No. 13283 – 1147 pending finalization of (sic) hereof and pending finalization of the legal action to be instituted by the Applicant.

(g) The 4th and 5th Respondents shall not assist the Court Sheriff or his Deputy in enforcing the Interim and Final Order of the above-mentioned Honourable Court.”

[2] This application is the latest instalment of the legal battles between the applicant and the 1st respondent. At the heart of the dispute is the Mohalalitoe property known as plot No. 13283 – 1147 which was bequeathed testamentarily to the 1st respondent by the late ‘Mathabang Nyatso. In CIV/T/368/2012 the applicant had sued the 1st respondent. In that case the applicant had sought a declaratory order that she is a testamentary heir to the estate of the late ‘Mathabang Nyatso. She was however, unsuccessful on the basis of lack of locus standi. It would seem that on the 04 January 2018 the 1st respondent instituted proceedings in the Maseru Magistrate Court for ejectment of the applicant from the property mentioned above. That ejectment action was granted by default on the 04th April 2018, and the applicant was served with the order of ejectment. She avers that she instructed her legal counsel to apply for a stay of execution and rescission, but that never materialized as the said application did not satisfy the requirements of the relief sought.

[3] Having been ejected successfully per an order of Maseru Magistrate Court on the 24th April 2018, the applicant launched this application for relief in terms outlined above.

[4] This application was opposed. After filing her intention to oppose the matter, the 1st respondent through her legal counsel, invoked Rule 8(10) (c) procedure of the rules of this Court. This rule provides that any person opposing the grant of any order sought by the applicant shall “if he intends to raise any question of law without any answering affidavit, he shall deliver notice of his intention to do so, within the time aforesaid, setting forth such question.” In terms of this rule, the 1st respondent raised about four points in limine, viz, (1) Lack of urgency (2) Lack of jurisdiction (3) Lack of locus standi (4) Lack of cause of action.

On the 05th May 2018 when both Counsel were before court to argue the matter I dismissed the application with costs and undertook to provide written reasons in due course. These are the reasons. As already seen a number of so-called, points, in limine were raised, but in my view one of the points in limine suffice to put this application to bed, and that is the point of jurisdiction.

[5] Although this court has unlimited jurisdiction to hear civil and criminal cases, it is however constrained by the provisions of section 6 of the High Court Act No. 5 of 1978. It provides:

“No civil cause or action within the jurisdiction of a Subordinate Court (which expression included a local or central court) shall be instituted in or removed into the High Court, save –

By a Judge of the High Court acting of his own motion; or

With the leave of a Judge upon application made to him in chambers, and after notice to the other party.”

It is undisputed that the Subordinate Courts, and this Court have concurrent jurisdiction in matters of interdicts and mandament van spoiler. But for this court to entertain such matters the provisions of section 6 mentioned above must be complied with and this has been the standard practice over decades (see: Nko v Nko 1991 – 92 LLR –LB P. 5 at pp. 6 – 8; see also ‘Malebohang Manare and Another v Master of High Court and Others CIV/APN/79/2018 (unreported), confronted with the reality of no-compliance with section 6, counsel for the applicant’s non-compliance. I however, intimated that I was not willing to do so as counsel have been warned time and again to familiarize themselves with the rules and procedures of this court and in this regard, Smallberger J.A. said the following at para. 4 of National University of Lesotho and Another v Thabane LAC (2007 – 2008) 476.

“Before proceeding I propose to make some comments concerning the Rules. They are primarily designed to regulate proceedings in this court and to ensure as far as possible the orderly, inexpensive and expedition’s disposal of appeal. Consequently the Rules must be interpreted and applied in a spirit which will facilitate the work of this court. It is incumbent upon practitioners to know, understand and follow the Rules, most if not all of which are cast in mandatory terms. A failure to abide by the Rules could have serious consequences for parties and practitioners alike – and practitioners ignore them at their peril…. The court retains a discretion to condone a breach of its Rules (see Rule 15) in order to achieve just results. The attainment of justice is this court’s ultimate aim. Thus it has been said that rules exist for the court, not the court for rules. The discretionary power of this court must, however, not be seen as an encouragement to laxity in the hope that the court will ultimately be sympathetic. There is a limit to this court’s tolerance.”

Because of the peremptory nature of the provisions, non-compliance with its terms will appropriately be visited with the dismissal of such application. In the present case no application was made to me in chambers to launch this application in this court, and it is for that this application was dismissed with costs.

In any event the judgment of the court a quo can only be assailed by invoking a review or appeal procedure, and not by seeking to interdict its execution as is the case in this matter.